Opinion
1:24-CV-3141-TOR
11-07-2024
JEROME CURRY, JR., Plaintiff, v. JOANNA BENDER (King County Superior Court), CANDACE L. HOOPER (Kittitas County Superior Court), JUDGE TRACY STABB (Washington State Court of Appeals, Division III), KING COUNTY PROSECUTOR'S OFFICE, KITTITAS COUNTY PROSECUTOR'S OFFICE, KING COUNTY PUBLIC DEFENDERS, KITTITAS COUNTY PUBLIC DEFENDERS, MATT MILLS (Kittitas County Prosecutor), ZACHARY R. WILLIAMS (Kittitas County Prosecutor), GREGORY L. ZEMPEL (Kittitas County Prosecutor), MARGIE ALUMBAUGH (Kittitas County Attorney), ETOY ALFORD (Kittitas County Attorney), ROBERT COSSEY (Spokane County Attorney), KAREN BOWEN (Kittitas County Clerk of Court), SARAH KEITH (Kittitas County Court Administrator), LEA ENNIS (King County/Division I Administrator Clerk), TRISTEN WORTHEN (Spokane County/Division 3 Administrator or Clerk), ERIN L. LENNON (King County Superior Court Clerk), SARAH PENDLETON (Olympia Duty Clerk), PATICIA GOLDMAN (King County Prosecutor), DAVID S. KEENAN (King County Judge), NARESH RAJAN (King County Public Defense Counsel), JUDGE WHALEN (Washington Supreme Court Olympia), CATHERINE CORNWALL (King County Clerk), JENNIFER (King County DRW), KING COUNTY BAR ASSOCIATION, MECHELE STORM (King County ACLU), MR. CALLNER (Judicial Commission Conduct Olympia), CLAY MYERS (Kittitas County Sheriff), ZACHERY GREEN (Kittitas County Sheriff), TYRELL NIELSEN (Kittitas County), JOSE SERRANO (Kittitas County), CHARLES BERG (Kittitas County), ROBIN LOVELL (Kittitas County), KITCOM CAD (Kittitas County), SYDNEE STERKEL (Kittitas County), CPL NIELSEN (I-90), WSP'S VICTORIA (I-90), CHRISTEN WHITE (I-90), DENSLEY ARON (Kittitas County), THOMAS MEGARGLE (Kittitas County), LOGAN SWIFT (Kittitas County), K. SWIFT, CPC RICHARD PRYOR, and DEVIN DONALD BAKER, Defendants.
ORDER DISMISSING ACTION
THOMAS O. RICE UNITED STATES DISTRICT JUDGE
BEFORE THE COURT is Plaintiff Jerome Curry, Jr.'s First Amended Complaint. ECF No. 19. Plaintiff, a prisoner at the Kittitas County Corrections Center in Ellensburg, Washington, is proceeding pro se and in forma pauperis. ECF No. 17. Defendants have not been served.
As a general rule, an amended complaint supersedes the original complaint and renders it without legal effect. Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, “[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citing London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)), overruled in part by Lacey, 693 F.3d at 928 (any claims voluntarily dismissed are considered to be waived if not repled).
Furthermore, defendants not named in an amended complaint are no longer defendants in the action. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Therefore, “No Named Defendant” was terminated from this action and Defendants Joanna Bender (King County Superior Court), Candace L. Hooper (Kittitas County Superior Court), Judge Tracy Stabb (Washington State Court of Appeals, Division III), King County Prosecutor's Office, Kittitas County Prosecutor's Office, King County Public Defenders, Kittitas County Public Defenders, Matt Mills (Kittitas County Prosecutor), Zachary R. Williams (Kittitas County Prosecutor), Gregory L. Zempel (Kittitas County Prosecutor), Margie Alumbaugh (Kittitas County Attorney), Etoy Alford (Kittitas County Attorney), Robert Cossey (Spokane County Attorney), Karen Bowen (Kittitas County Clerk of Court), Sarah Keith (Kittitas County Court Administrator), Lea Ennis (King County/Division I Administrator Clerk), Tristen Worthen (Spokane County/Division 3 Administrator or Clerk), Erin L. Lennon (King County Superior Court Clerk), Sarah Pendleton (Olympia Duty Clerk), Paticia Goldman (King County Prosecutor), David S. Keenan (King County Judge), Naresh Rajan (King County Public Defense Counsel), Judge Whalen (Washington Supreme Court Olympia), Catherine Cornwall (King County Clerk), Jennifer (King County DRW), King County Bar Association, Mechele Storm (King County ACLU), Mr. Callner (Judicial Commission Conduct Olympia), Clay Myers (Kittitas County Sheriff), Zachery Green (Kittitas County Sheriff), Tyrell Nielsen (Kittitas County), Jose Serrano (Kittitas County), Charles Berg (Kittitas County), Robin Lovell (Kittitas County), Kitcom CAD (Kittitas County), Sydnee Sterkel (Kittitas County), CPL Nielsen (I-90), WSP's Victoria (I-90), Christen White (I-90), Densley Aron (Kittitas County), Thomas Megargle (Kittitas County), Logan Swift (Kittitas County), K. Swift, CPC Richard Pryor, and Devin Donald Baker were added.
Liberally construing the entirety of the First Amended Complaint in the light most favorable to Plaintiff, however, the Court finds that he has failed to cure the deficiencies of his initial complaint as set forth in the Order to Amend or Voluntarily Dismiss Complaint and Denying Motion for Appointment of Counsel. ECF No. 18. Plaintiff's First Amended Complaint does not show “in a clear and concise manner how persons identified as Defendants, who are person acting under color of state law and are not immune from suit, have violated his constitutionally protected rights.” Id. at 17. The Court cautioned Plaintiff that his failure to submit such an amended complaint would result in the dismissal of this action. Id.
The Court finds the First Amended Complaint against various judicial officers, prosecutors, defense attorneys, court clerks, and law enforcement officers concerning allegedly altered evidence in his pending state court criminal matter, ECF No. 19, fails to state a claim upon which this Court can grant him relief. See Stump v. Sparkman, 435 U.S. 349, 356 (1978) (judicial immunity); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc) (same); Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976) (prosecutorial immunity); Miranda v. Clark County, 319 F.3d 465,468 (9th Cir. 2003) (en banc) (public defender not considered a state actor); Younger v. Harris, 401 U.S. 37, 45 (1971) (in most circumstances a federal court should abstain from directly interfering with ongoing criminal proceedings in state court); Beltran v. California, 871 F.2d 777, 782 (9th Cir. 1988) (“Younger abstention requires dismissal of the federal action.”); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”).
This Court instructed Plaintiff to submit no further supplemental materials. ECF No. 18 at 17. Plaintiff has disregarded this instruction and continues to file supplemental materials, including what appear to be documents prepared for his state criminal proceeding and a second copy of the First Amended Complaint. ECF Nos. 20 and 21. To the extent Plaintiff may wish to pursue claims arising in the Western District of Washington, venue is not proper in this District, and the Court finds that it would not be in the interest of justice to transfer this action. See 28 U.S.C. § 1406(a). Plaintiff is free to file a separate action in the Western District of Washington. He shall file no further supplemental materials in this action.
Having granted Plaintiff the opportunity to amend and finding that further amendment would be futile under the circumstances of this case, see Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011), the Court will dismiss the First Amended Complaint, ECF No. 19, but without prejudice to Plaintiff pursuing his claims in his pending state court criminal proceeding, through the state appellate system, and if necessary, through subsequent state and federal collateral review proceedings.
Accordingly, IT IS HEREBY ORDERED:
1. The First Amended Complaint, ECF No. 19, is DISMISSED without prejudice to Plaintiff pursing his claims in his state criminal proceeding and subsequent state appellate and state and federal collateral review proceedings.
2. This dismissal will not count as a dismissal under 28 U.S.C. § 1915(g). See Washington v. Los Angeles Cty. Sheriff's Dep't, 833 F.3d 1048 (9th Cir. 2016).
3. Plaintiff's in forma pauperis status is hereby REVOKED.
4. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal of this Order would not be taken in good faith and would lack any arguable basis in law or fact.
The Clerk of Court is directed to enter this Order and Judgment accordingly, provide copies to Plaintiff at his last known address, and CLOSE the file.